When An Investigating Officer Wants to Ask You Questions, Get an Attorney Instead.

Recently, yet another Servicemember has been questioned by an Investigating Officer regarding alleged inappropriate conduct. The Investigating Officer had questions for a Fort Bragg Battalion Commander, as reported here, who was subsequently relieved.

When an Investigating Officer (IO) wants to talk to you consider the following:

1. It is s/he who will summarize, evaluate, and write down what you said. Once you talk to the IO, the IO controls the input.
2. What you say may be used against you. There is a reason why the IO may want to talk to you.
3. The standard for a legally sufficient investigation is fairly low. The recommendations must be supported by findings. The evidence must show that something happened based on the legal standard of 'more likely than not.' As such, it is fairly easy for an IO to conclude that you may have acted negligently. Once the IO finds negligence, and the IO recommends adverse action against you, it will be too late to argue with the IO.
4. Once completed, the investigation will be presumed administratively correct – very difficult to change it.

There are a few ways of mitigating the dangers of speaking with an Investigating Officer (IO).

1. Submit your reponses in writing and have an attorney review your responses before you submit them. The attorney will be able to ask the IO for his appointment orders, the questions he or she is trying to answer by interviewing you, and review your responses.
2. Have an attorney independently look at the facts. Perhaps your attorney will be able to speak with the IO and offer him suggestions.
3. Have your attorney advocate on behalf of you to the IO. The IO is working against the deadline to submit the investigation on time. Have your attorney research additional facts and call the IO with the new information.
4. If the result is still adverse, your attorney will be ready to assist you because s/he will be familiar with the investigation and will be able to point out its problems. A brand new attorney will have to familiarize himself or herself with the entire investigation.

This information does not constitute legal advice. It is intended for public use only. It is directed at general public only. If you need legal advice, contact an attorney at The Federal Practice Group.